Williams v. Dyer et al

Filing 5

FINDINGS and RECOMMENDATIONS recommending that 4 Plaintiff's First Amended Complaint Be DISMISSED Without Leave to Amend for Failure to State Grounds for Jurisdiction in this Court, signed by Magistrate Judge Sandra M. Snyder on 11/17/2009. Referred to Judge Wanger. Objections to F&R due by 12/21/2009. (Jessen, A)

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UNITED STATES DISTRICT COURT
7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 v. 13 14 15 16 17 Plaintiff is a state prisoner who is proceeding pro se and 18 in forma pauperis with an action for damages and other relief 19 concerning alleged civil rights violations. The matter has been 20 referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b) 21 and Local Rules 72-302 and 72-304. Pending before the Court is 22 Plaintiff's first amended complaint, filed on September 22, 2009. 23 I. Screening the Complaint 24 The Court must screen complaints brought by prisoners 25 seeking relief against a governmental entity or officer. 28 26 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion 27 thereof if the Court determines that an allegation of poverty is 28 1 FRESNO POLICE CHIEF JERRY DYER, et al., Defendants. LAWRENCE DEE WILLIAMS, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) ) 1:09-cv-01435-OWW-SMS FINDINGS AND RECOMMENDATION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT WITHOUT LEAVE TO AMEND FOR FAILURE TO STATE A BASIS FOR JURISDICTION IN THIS COURT (Doc. 4)

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untrue or that the action is 1) frivolous or malicious, 2) fails to state a claim upon which relief may be granted, or 3) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b), 1915(e)(2). "Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. P. 8(a). Pursuant to Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R.

Civ. P. 8(a). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to `state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusion are not. Id. at 1949. If the Court determines that the complaint fails to state a claim, leave to amend should be granted to the extent that the deficiencies of the complaint can be cured by amendment. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc). Dismissal of a pro se complaint for failure to state a claim is proper only where it is obvious that the Plaintiff cannot prevail on the 2

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facts that he has alleged and that an opportunity to amend would be futile. Lopez v. Smith, 203 F.3d at 1128. II. Subject Matter Jurisdiction It is Plaintiff's burden to allege a short and plain statement of the grounds for the Court's jurisdiction unless the Court already has jurisdiction and the claim needs no new jurisdictional support. Fed. R. Civ. P. 8(a)(1); McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936). Local Rule 8-204 provides: When an affirmative allegation of jurisdiction is required pursuant to Fed. R. Civ. P. 8(a)(1), it (i) shall appear as the first allegation of any complaint, petition, counterclaim, cross-claim or third party claim; (ii) shall be styled "Jurisdiction," (iii) shall state the claimed statutory or other basis of federal jurisdiction, and (iv) shall state the facts supporting such jurisdictional claim. III. Plaintiff's Complaint

15 Here, Plaintiff alleges that he was defamed by the 16 Defendants (the Chief of Police and the Mayor of Fresno), who 17 stated that he had committed previous crimes (double murder and a 18 Merced home invasion rape), and that thereafter Plaintiff was 19 assaulted by inmates in Plaintiff's place of confinement. 20 Defamation is a state tort claim. 21 Plaintiff fails to state any basis for subject matter 22 jurisdiction in this Court. Plaintiff does not appear to be 23 asserting any right arising under federal statute, treaty, or the 24 Constitution that would confer jurisdiction pursuant to 28 U.S.C. 25 § 1331. 26 Further, Plaintiff, who is an inmate in California, does not 27 include any allegations regarding the citizenship of Defendant or 28 3

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of Plaintiff; however, because of the positions of the named defendants, it is not likely that the named defendants are citizens of a state other than California. Hence, it does not appear that there would be subject matter jurisdiction based on the citizenship of the parties pursuant to 28 U.S.C. § 1332. Accordingly, Plaintiff has failed to state a basis for jurisdiction in this Court. Plaintiff has already been informed of the requirement of stating grounds for jurisdiction, and Plaintiff has been given an opportunity to file a first amended complaint. However, Plaintiff has not cured the defect in his complaint. It appears that affording Plaintiff a further opportunity to state a jurisdictional basis would be futile. IV. Recommendation Accordingly, it IS RECOMMENDED that Plaintiff's second amended complaint be dismissed without leave to amend for failure to state grounds for jurisdiction in this Court. This report and recommendation is submitted to the United States District Court Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 72-304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within thirty (30) days after being served with a copy, any party may file written objections with the Court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Replies to the objections shall be served and filed within ten (10) court days (plus three days if served by mail) after service of the objections. The Court will then 4

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review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

IT IS SO ORDERED. Dated: icido3 November 17, 2009 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE

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